Untitled Texas Attorney General Opinion ( 1962 )

OF XAS
December 4, 1962
WILL WIISON
*x-rORNEY GENERrhL.
Honorable Jack N. Fant Opinion No. brw-1482
Cunty Attorney
El ?nso County Re: Authority of the Commis-
E! Paso, Texas sioners Court ~)fEl Paso
County, under the pro-
visions of the Water
Safety Act, Article
1722a, V.C.S., to levy
and collect an annual
inspection fee from all.
motorboats using Ascarate
Park Lake in the County
park located in El Paso
County; and related ques-
Dear Mr. Fant: tions.
You have asked for an opinion of this office as to
:,;hether
or not the Commissioners Court of E1 Paso County,
under the provisions of the Water Safety Act, rirtic.'e
1722a,
Vernon's Civil Statutes, has authority to levy and collect
an annual inspection fee from all motorboats using Accarate
PzrG Lake in the County park located in Ei Paso County. You
have further asked whether the Commissioners Court has the
zuthority to designate a deputy sheriff or other legally consti-
tuted county officer to inspect the motorboats and to collect
the inspection fee, and further, whether an order of the Com-
mizcioners Court would suffice so -bts
to comply zith the "local
la;.i"
referred to In Article 1722a.
We must first note that the County park presentI.?at
is one established under the authority of Artic?es 6078
i.:;cue
6081e, Vernon's Civil Statutes. Articl~e6078 is quoted in
::.nd
pi% as follow:
1,
. . . Said court shall have full power
and control over any and all such parks and
mav levv and collect an annual tax sufficient
in"their judgment to properly maintain such
parks and build and construct pavilions and
such other buildings as they may deem neces-
sary; lay out and @pen driveways and T!Jrlks,
pave the same or any part thereof, set out
Hon. Jack N. Fant, page 2 (~-1482)
trees and shrubbery, construct ditches or
lakes, and make such other improvements as
they may deem proper. Such parks shall re-
main open for the free use of the public
under such reasonable rules and regulations
as said court may prescribe." (Emphasis
added).
Article 1722a, Vernon's Civil Statutes, entitled the
Yater Safety Act, is the statute which has been enacted to
govern the operation of watercraft on the waters of this
State. Section 13 thereof is quoted:
"The provisions of this Act, and of
other applicable laws of this State, shall
govern the operation, equipment, numbering
and all other matters relating thereto when-
ever any vessel shall be operated on the
:latersof this State, or when any activity
regulated by this Act shall take plac,ethere-
on, but nothing in this Act shall be construed
to prevent the adoption of any ordinance or
local law relating to operation and equipment
of vessels, the provisions cf Txhichare con-
sistent rliththe provisions of this Ac,t.amend-
ments thereto or regulations issued thereunder,
providing further that an incorporated munici-
pality may adopt ordinances limiting the horse-
poyrerof motorboats on all lakes o-ned by or
situated in the jurisdictional limits of such
municipality."
We are thus left with two basic questions. One, does the
county have the authority to issue such a regulaticn; t?Jo,does
the proposed regulation conflict with the provisions of Article
1722a?
It is a general proposition of law that counties have
only those pot:Jers
or duties tha, are clearly set forth and de-
fined in the Constitution and s1atutes. And the powers grant-
ed to counties are more strictly construed than those granted
to incorporated municipalities. 15 Tex.Jur.2d, Counties, Sec.
80. Further, the commissioners court is a court of limited
jurisdiction. Canales v. Laughlin, 147 Tex. 169, 214 S.W.2d
451 (1948); and the commissioners court does not have general
police powers, Commissioners Court v. Kaiser, 23 S.W.2d 840
:Civ.App., 1929, error ref.) In support of the proposed inspec-
tion fee, we have been cited'to the case of City of Stamford
Ron. Jack N. Fant, page 3 (EN-1482)
v. Ballard, 345 S.W.2d 596 (Civ.App., 196@), wherein it :.ras
h ld that a city ordinance imposlng'an inspection fee upon
r&t boats on a city lake was valid This case cannot con-
trol on the present issue by virtue'of the fact that a city
has implied powers and general police poi!ers,whereas a
county has no such authority. In order to e-.ercisea power,
a county must have been specifically delegated such power,
either by Constitution or by statute. Mills Counti.
Lampasas County, 90 Tex. 603, 40 S.FJ.403 !1697).
With reference to the subject of fees, it L5houi.d
be
noted that it has been held that a state bzard may not im-
pose a fee where there has been no specific authorization for
such fee. Attorney General's Opinion No. 0-5802 (1944).
Further, no nublic officer may claim or receive anv monev
::iithout-a
law authorizing him"to do so and cl~early"fixingthe
amount to which he is entitled. Binford v. Robinson, 112 Tex .
84, 244 S.W. 807 (1922). li!efind no clear unquestionable
statutory authority setting forth a specific amount v;hich
could be imposed by the County of El Paso for the fee here
in issue. This conclusion is reinforced by referring again
to Article 6078, wherein the county is authorized to exercise
full power and control over the park Iwithinits limits. This
control is granted in the same sentence which authorizes the
levy and collection of annual taxes sufficient tc properly
maintain such parks and construct such additions necessary to
their proper operation. We may reasonably conclude, there-
fore, that the "full po:!erand control" granted by the T,eg'i::-
lature to the county was intended by the Legisiatu``et:?e:~;-
tend only to such control as is consistent ?Jiththe ei'i'i-
cient operation of the park. The statute speci.ficz:lyprc-
vides for the allocation of taxation to f'inanccthe i>:;rl-:.
The fee proposed here by El Paso County is c1~e:zrJ.y
2 i>ev::nue
measure, not a safety measure. The revenue to zuppo:*tthe
park is to be provided by taxation imposed under A:ticlc
6078 and not raised by the levy of inspection fees.
Cur answer to the first question renders neetil~e::e
:,ny
ans.:!er
to the other questions posed.
SUMMARY
The Commissioners Court of El Pa.-:0
County has no authority to levy :.n
annual inspection fee upon all motor-
boats using Ascarate Park Lake, a
Hon. Jack N. Fant, page 4 (W-1482)
county park located in El Paso
county, such park lake having been
established under the authority of
Articles 6078 and 6081e, V.C.S.
Yours very truly,
WILL WILSON
Attorney General.of Texas
Malcolm L. Quick
Assistant
MLC:ms
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
John Reeves
L. P. Lollar
Tom Peterson
Bob Eric Shannon
REVIEWED FOR THE ATTORNEY GENERAL
By: Leonard Passmore